Evolution of the Position of Children in English Law - Essay Example

? Children and Evidence: An Assessment of the Evolution of the Position of Children in Giving Evidence in English Law Introduction Children and minors are always deemed to be persons who have limited abilities and capacities to carry out legal activities, hence they are protected by the law in many situations and cases1 One of the areas in which children are protected and/or limited by the law is in the process of giving evidence. The Human Rights Act (1998), which is a fundamental portion of UK law today, stipulates that every individual has the right to a fair trial in all situations and circumstances2 Article 6 provides the guarantee that all people must have a right to a fair trial. The Article also stipulates that the courts must interpret the legislation of cases in a manner that will be consistent with the Human Rights Act3. This requires that evidence is given in all cases before any judgement is passed in any case in a UK court. There are four main types of evidence that is used to examine and prove the actus reus and the mens rea in cases in the English legal system4. First of all, there is the direct evidence which is given by the victim or witness of a criminal activity under trial. This is given by the witness or victim of a crime directly to the court and in most cases, the counsels of the parties can cross examine the witness or victim to ascertain the accuracy and/or reliability of the evidence. Secondly, there is documentary evidence which involve written or recorded items that relate to the incident that can be presented to the court to back a claim in the case. There is also real evidence which include other tangible things which can be turned in to support or refute a claim in the case. Finally, there is the circumstantial evidence which involves information that come to describe related events connected to the issue at hand. There are things that determine the worth of a piece of evidence: relevance, admissibility and weight5. Evidence must have a direct bearing to the case at hand. If evidence does not really connect with a case at hand, it might not be appropriate for the court to accept it. Also, there are rules and regulations about the admissibility of evidence. This is based on statute and precedence. Thus for instance, there is the popular question of whether a parrot can be admissible as a witness in a divorce case if it continues to repeat things that indict a given party in the case. As to whether it will be appropriate will depend on the rules and regulations relating to the admissibility of evidence that the court adheres to. Also, the weight or the persuasiveness of a given piece of evidence is important. This is because it shows how much emphasis that the court needs to put on the evidence that is presented before it. In this paper, we examine the question of the position of children in giving evidence in a court of law. Basically the Common Law position seemed to exclude children based on certain grounds of technicality. The case of R V Wallwork6 provide a popular basis for the rejection of children in giving evidence in cases, even if the case is relevant to them. This paper examines the implication of this trend and how it has evolved over the years to include children as we have it in law today. Fundamental Legal Position of Child Witnesses Basically, the English Legal system does not take the submission of evidence from children considered to be minors. This is because they have normally been deemed to be incapable of understanding the implications of their actions. Hence, the court system deems it inappropriate for them to be given legal rights in giving evidence in criminal courts and criminal cases. However, there is a question of whether children can be allowed to give evidence in cases that are relevant to them as individuals. In the 19th Century, the only exception that appear to have been in vogue relates to the provisions of the Criminal Law Amendment Act 1885 which permitted young girls to give evidence. This was in the case of unlawful sexual intercourse with girls under the age of 13. This was necessary because that was the only way that persons who committed the crime of having sexual relations with an underaged person could be brought to book. This provision survived to the Children and Young Persons Act, 1933. Although the situation was sought to give children who had been abused the right to give evidence in a sexual matter, Section 38 (1) indicated that the unsworn evidence of a child could not lead to the conviction of a person unless there was corroborative evidence that provided material evidence. In other words, where the child makes an unsworn submission, the evidence must be supported by some other 'valid' evidence before any conviction could be made on the basis of the submission7. From the case of R V Cleal8 the Judge identified the “Danger that the evidence of a child, especially if unsworn, but even if sworn, may be unreliable by reason of childish imagination, suggestibility, or fallibility of memory.”9. This was from a 1942 case and suggests that the courts were not very trustworthy of the evidence turned in by children, even if the children are sworn. This is because it was deemed that children have a limited imagination which is not matured enough to grasp the realities of things. Also, children are always vulnerable and can be manipulated through suggestions and other influences from older persons. Also, the memory of children is deemed to be weak and hence, children were not allowed to give evidence in a competent court of judicature. R V Wallwork The case of R V Wallwork illustrates the position of the law in the 1950s in relation to how the views of children were taken in examining the admissibility of their evidence At this point, the Children and Young Persons Act of 1933 and the R V Cleal ruling was in vogue. As such, the judge had to be cautious in admitting that a child was supposed to turn in during a legal proceeding. In the case, the defendant was charged for committing incest with his five year old daughter. The daughter was called to the witness box but she was unable to give evidence. The girl's grandmother was called and she gave information about the complaint of incest that was brought to her. It was held that the complaint by the grandmother ought not to have been heard. This is because it was not a valid evidence. The only valid evidence could have come from the victim or a witness to the act. However, the circumstantial nature of the complaint presented by the grandmother could be taken in. So the jury had to decide on the basis of the fact that the grandmother took the child to the police and doctor. The jury had to infer logically that the man [the girl's father] that the police apprehended was the perpetrator of the act. This method of inference of the jury was considered to be too artificial. This is because the child was no allowed to give evidence. Clearly, this stood in the way of justice and needed to be revised. In the law of evidence, complaint is not the evidence of the facts complained of10. Complaint can only be used as evidence to support consistency with the testimony of the complainant. Clearly, in this case, the complainant, who was a five year old girl could not make her complaint. So it is apparent that in cases where consent is an issue, like sexual offence cases, there might be the need for minors to give evidence. Thus, in the case of R V Wallwork, there was no evidence given by the child and since this was not done, the complaint could not be tested for consistency and hence, there was no evidence11. This implies that there is a major loophole in the legal system. By extension, this means that the attempt to prevent children from giving evidence on the basis of their vulnerability implied that the law could not protect such persons sufficiently because of the fact that atrocities committed against them could be overlooked with the excuse of a 'lack of evidence'. In R V Wright and Ormerod12, it was identified that if the terms of the complaints are not consistent with the terms of the complainant's testimony, then the introduction of the complaint has no purpose. This indicates that it is important for the defendants to speak. This is because where complainant does not testify and there is no evidence that the complaint may be consistent with, then the complaint is not admissible. This means that there is the need for something to be worked out in a case where a witness is not allowed to speak, like the case of a minor. Hence, there is a shortfall in the situation where the law seeks to bar a person from giving evidence because s/he is a minor. This is because complaint and testimony must be in sync for criminal proceedings to be carried out. This therefore formed the basis for change, which occurred in he English legal system in the 1990s. These changes were necessary because some children had the capacity to think and act like adults and older members of the society. Also, in some cases, the adherence to strict traditions of not allowing children to give evidence in court was causing children to suffer unfairly under the aegis of the law. Based on these issues, the need for change was prompted. Changes and Practices As far back as 1864, W. G. Dixon wrote that: “An intelligent child is generally a good witness in matters within his comprehension. Being accustomed to observe more than reflect, he tells what he has seen or heard without drawing inference or pre-conceived opinion... in cross examination, a young witness generally tells ingeniously, whether he has been tutored and if so, what he was desired to say”13. This position suggests that there are different kinds of children. This implies that there are different levels of reasoning amongst children and some of them could be good witnesses. Clearly, there are some children who show more intelligence than adults in every society. This means that such children, in spite of their limitations might still be good witnesses who could give evidence that is of the same worth as any other adult. Secondly, children are normally not opinionated or prejudiced. They only say what they see. They might not have hatreds and malice that might tempt them to give biased accounts of what they experienced in court. In that sense, the arguments of W. G. Dixon holds and implies that the court has little justification to prevent children from giving witnesses. Thirdly, Dixon suggests that in cross examinations, children can always say things ingeniously because they are normally prone to saying nothing but the truth. This seem to be the default position and might even make it easier for children to be better witnesses than adults in cases of law. If these three points resonate with people and are valid, then the assertion that children cannot be good witnesses is wrong and cannot be relied upon. This position seem to counter the ruling of Lord Goddard which asserted that “ a [court] should deprecate the calling of a child of this age as a witness...the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could…” 14. Lord Goddard's position that it is ridiculous to make a very young child a witness in a serious case and W. G. Dixon's assertion that children are excellent witnesses provide two sides of a major debate. In other words, the two conflicting views have their unique judgements but they had bearings on the subsequent development of the English legal system in relation to the law of evidence. Lord Goddard seem to represent a school of thought that genuinely believe that a very young child might not be able to understand important things about life and law. Hence, they cannot be allowed to give evidence, especially, information that will incriminate a person in a serious case, like an incest trial. However, W. G. Dixon seem to support the assertion that children are innocent and neutral. As such, they are capable of giving evidence. These two varying view points show that there are differences in the way of viewing the situation of child witnesses. The best way of resolving this might be to find a mid-point between the two different parties. Clearly, it is wrong for any party to take a rigid position on this subject and generalize excessively by taking a stance. So as English Law always does, the debates between the parties evolved and there were significant changes to the Law of evidence. The main period of change commenced in the 1980s and significant changes in blending the two different view points occurred in the 1990s. In R V Z15, Lord Lane CJ stated that: “to the acceptability of the evidence of young children, and of an increasing belief that the testimony of young children, when all precautions have been taken, may be just as reliable as that of their elders”. Lord Lane was therefore insinuating that the growing view that children can give reliable evidence indicate that the submissions and evidence of children could be relied upon by a court. In this sense, the demands from the external environment seem to have influenced his view. However, he proceeds cautiously by stating that there is the need for some precautions to be taken by the court. This might include amongst other things, coaching the child witnesses and enabling them to understand some important aspects and elements of the delivery of evidence. In 1991, there was an event that had a major effect on the legal system in relation to evidence turned in by children. Section 38 (1) of the Children and Young Persons Act of 1933 which prevented the conviction of people from unsworn evidence given by a child was repealed by the Criminal Justice Act 1991, Schedule 13. This meant that evidence given by a child could be used to incriminate and jail a person who is indicted by that evidence. However, further changes and reforms had to be made. This was to ensure that the discriminatory position that children held in the law of evidence had to be eliminated. In 1998, the Criminal Justice Act, Section 34 (2) which made it obligatory for warnings to be given to the jury on the conviction on the basis of uncorroborated evidence of children to be abrogated. This meant that the discrimination that children suffered in giving primary evidence was gradually eliminated through these statutes. This was to lay the foundation for further changes that would make the evidence of children to be given some degree of prominence. These changes in the statutes and legal system were demonstrated in some landmark cases. In R V Pryce16, Pryce was accused of committing sexual offences against two children. The court invoked the principle of Section 34 (2) of the Criminal Justice Administration Act of 1988 which stated that: “Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child is abrogated”. Clearly, this law was meant to protect children who were abused by adults. It was meant to enable children to indict persons who had caused harm against them directly. This was to seal the loophole of getting adults go away free after harming children on the grounds of the lack of evidence. The court therefore interpreted this provision to mean that children are on the same level as adults in presenting evidence in cases where their rights had been violated or crime had been committed against them. The court held that there was no need to give full direction to the children or treat them differently. The children were allowed to turn in evidence about the violations that they suffered under Pryce. Also, the ruling of the case indicated that it is sufficient for a trial judge to tell the jury to take into account that the witness was only six years old. It was not necessary to ask for any further precaution. Thus, statutes like CJA 1988 Section 34 (2) showed that it is possible for children to be treated as adults in cases whereby there is clear indication that they have been wronged by older members of the society. However, this is not an absolute position. This is because in R V L17, it was shown that the judges retained the right to discretion on the power to give direction on how the evidence of children should be treated. And it must be noted that whether this discretion was to be exercised or not, depended on the facts on the ground. So the evolution of criminal law in relation to the rights of minors to give evidence has been based on the enactment of statutes that tend to seal loopholes that occur in the society. The main purpose of this evolution was to protect the rights of children and prevent them from being exploited on the grounds that they could not give evidence in court. Current Trends Currently, the Youth Justice and Criminal Evidence Act of 1999 provide a broad framework that regulates the analysis of the eligibility of young people to give evidence in a court of law. Section 1 (a) states that at every stage in criminal proceedings, all persons are (whatever their age) competent to give evidence. This means that children are also qualified to give evidence at every stage in the criminal proceedings. This statute therefore implies that there is absolutely no limit to children in the criminal justice system. However, the statute also comes with some limitations which affects the involvement of children in the justice system. Section 3 sates that a person is not competent on two grounds. The first grounds is where the person will not understand the questions put to him in the criminal proceedings. In other words, there must be evidence that the individual has some kind of challenge that will make it impossible to understand the questions that will be put to him. This means that a child might be disqualified from giving evidence if s/he cannot comprehend questions such as cross-examination which might be necessary to understand and critique his or her evidence. This therefore means that in a situation where a child can understand the questions that will be thrown to him, s/he is competent to carry turn in the evidence. As such, if it is possible that a five year old child can understand the questions that will be thrown at him or her in cross-examination, that child can turn in evidence in court. Secondly, a person is not competent if he cannot give answers that can be understood. In other words, where a person cannot speak or communicate to relevant parties in the court in a manner that the court can comprehend, that person cannot give evidence. Again, this means that a child who can talk and communicate during cross examinations can turn in evidence and this can be used in the court for rulings in the case. Also, Section 28 (2) of the Criminal Justice Administration Act 194 states that “a child of tender years may give evidence, provided he possessed sufficient intelligence to justify the reception of evidence and understand the duty of speaking the truth”. This means that a child who understand the legal procedures and the implications of his actions in court can be allowed to bring evidence and this evidence will be accepted by the court. However, the Act also holds that an out-of-court statement by a child is generally inadmissible as evidence. This is because such statements cannot be deemed to be serious in nature. Rather, in a situation where a child is giving evidence directly to court and he is aware of the implications of those statements, that child's evidence will be held admissible under the CJA provision. This effectively means that the earlier generations who sought to restrict children have had their system abolished. This is because the courts now deem children to be competent witnesses who can give evidence in court. This means that in the current generation, there is no stated rule that is meant to undermine the involvement of children in criminal cases as witnesses to the situation at hand. However, it also appears that the chronology of age helps in making informed decisions. This is because the age of a child can give an idea of how sophisticated he is. As such, his or her involvement in court might be connected strongly with the level of reasoning and the age that the child has attained. This can enable to court to prepare the child more appropriately for the situation at hand. Also, another observation about the current trend of treating evidence turned into the court by children has to do with individuality. Each individual has a different level within which s/he can operate and communicate. As such, the court might need to examine the competency of each child who appears to give evidence based on his level of sophistication. In the case of children who are geniuses, there might be little or no need to put any restrictions in their way or attempt to treat them differently in order to get the evidence for them. On the other hand, some very young children might need the support of some experts like child psychologists in order that they might be able to communicate and give evidence appropriately. These pointers in the two paragraphs above comes from the fact that the court has a discretion and can request for various tests to ascertain the specific needs of every child based on the circumstances of the case at hand18. This shows that the general trend of just restricting children as a general Common Law position meant to 'protect' children is no longer valid. Some authorities and scholars assert that the change in the position of the law has to do with the increases in the the rights of children based on the current emphasis of the law on a teleological approach steeped in the protection of human rights19. Another angle that this transformation can be explained is in relation to the need for more effort to be exerted in scrutinizing legal matters to promote justice, fairness and human rights. As such, children would be allowed to participate in court procedures when the need arises. Wigglesworth goes on to state that the current changes in the attitude towards child witnesses have to do with significant changes in the social structures and the flow of information20. This is because the restrictions that existed in the 1950s upon children do not seem to exist anymore. Children have more access to information and hence, can become knowledgeable and trustworthy persons who can give serious evidence in cases that the court can consider. Also, the advancement in technology gives a wide range of opportunities to prepare underaged persons to give evidence in court. Things like videos and other technologies allow children to be prepared thoroughly to give evidence in court that is valid today, than it was the case 60 years ago. In the case of R V Barker21, Barker was accused of anal rape of a girl under age 3. The girl was living with his mother when the incident happened. At age 2 years and ten months, she was taken into care. She made the disclosure to her carers. The disclosure was repeated to a child psychologist. The proceedings were delayed for sometime due to some other incidents that made it impossible for Barker to be tried for the anal rape. Eventually, the case was called up and the girl was now four and a half years old. At that age, the principle of R V Wallwork would have barred her from giving evidence and this would have meant the case would have been thrown out for the lack of evidence. However, with the help of technology and new legal arrangements, the girl gave evidence. She narrated the incident and it was videoed. During the trial, the recorded video was played and it became the evidence-in-chief. The girl was cross examined by the counsel of her mother and the counsel of Baker. The girl understood all the questions and she gave understandable evidence. Hence, the court took up her story and her evidence and Baker was jailed for anal rape of a person younger than 3 years old. This shows how much the legal system and its structures have been modified over the world. With the support of technology and changes in the legal system, children can now give evidence in court and the court must accept it once some broad requirements are met. Conclusion In legal cases, turning in evidence is important in proving the mens rea and actus reus of parties involved in the case. Evidence needs to be relevant, admissible and persuasive. There is however an issue about the eligibility of a child to turn in evidence that meets all these three requirements. Traditionally, the English legal system does not admit evidence from children except in the case of sexual offences like rape meted out against underaged girls. Basically, English law requires a person to provide evidence of facts that they complain about. In R V Wallwrok, a grandmother received a complaint of her grandchild having incestuous relations with her father. She reported the matter but the child's evidence was not take because she seemed unable to be of the right age and frame of mind when it occurred. However, there is a difference in opinion. Some school of thought see nothing wrong with children giving evidence in court. The debate between the two views of those who think children should not give evidence and those who support the fact that children should give evidence has led to some changes in the legal system since the 1980s. First of all, there was the need to take some precaution before allowing children to give evidence in court. In 1991, there was an amendment in the legal system that allowed judges to give act on unsworn evidence turned in by children. Warnings to jury and special treatment of children were eliminated. The Youth Justice and Criminal Evidence Act of 1999 allows everyone with a sound mind and the ability to communicate to give evidence in court. This effectively means that the evidence of children can be used by courts. Technology and the need to protect human rights has supported in preparing children to give evidence. So in summary, the evidence of children can now be used by courts to take decisions Bibliography Books Adrianne Keanne, The Modern Law of Evidence (2009 2Edn, Oxford: Oxford University Press) Jonetta Auburn, Legal Professional Privilege: Law and Theory (2002 London: Hart Publishing) Martin Hannibal and Lisa Mountford, The Law of Criminal and Civil Evidence (2009, 2 Edn London: Longman) Thomas J. Gardner and Terry , M. Anderson, Criminal Evidence: Principles and Cases (2010, 2 Edn Mason, OH: Cengage) Journals J. Wigglesworth, “The Scope of the Protection of the Rights of Minors” Sydney Law Review 25 (4) 2011 W. G. Dixon “Treatise on the Law of Evidence in Scotland” (1864) Cases Regina V Wallwork [1958] 42 Cr App Rep 153 R V Barker [2010] EWCA Crim 4 CA R V Cleal [1942] 1 A11 ER 203 CEA R V L [1999] Crim LR 489 CA R V Pryce [1991] Crim LR 379 CA R V Wright and R V Ormerod [1987] 90 Cr App R 91 CA R V Z [1990] 2 WB 355 Statutes Children and Young Persons Act 1933 Criminal Law Amendment Act 1885 Criminal Justice Administration Act 1998 Criminal Justice Administration Act 2003 Human Rights Act 1998 Young and Juvenile Criminal Evidence Act 1999 Read More